SECTION 1: RATIONALE FOR THE FEASIBILITY STUDY. Introduction

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1 Report of a Feasibility Study into setting up a Scottish Centre for Research on Equality and Human Rights Sheila Riddell, Joanna Ferrie, Jane Mulderrig, Nick Watson and Elisabet Weedon SECTION 1: RATIONALE FOR THE FEASIBILITY STUDY Introduction Equality of opportunity and human rights are high on the social, political and intellectual agenda. Recently published policy documents include a European Green Paper on equality and nondiscrimination (EC, 2004), the GB Equalities Review (Cabinet Office, 2007) and the Discrimination Law Review (Department for Communities and Local Government, 2007). At the heart of all these documents and recent legislation, such as the Equality Act 2006, is an emphasis on the principle of mainstreaming equality to replace the silo thinking which tended to characterise work in the field of equalities and human rights in the past. The need to implement European Employment Directives has led to new Regulations in the area of religion and belief, sexual orientation and age discrimination. Public and private sector organisations have new duties to ensure that they do not discriminate against their staff or clients on six grounds (gender, race, disability, age, sexual orientation and religion/belief), but also to promote equality in relation to race, disability and gender. The Equality and Human Rights Commission (EHRC) was established in 2007, with a GB-wide remit and the central aim of ensuring that public and private sector organisations place equal opportunities at the heart of all their activities. In Scotland, equality policy has a wider ambit than the six strands which feature in European policy, legislation and regulation. The Scotland Act 1998 defines equal opportunities in terms of the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions. In Scotland, therefore, equalities law is a complex mix of European, GB and Scottish law and policy and there are debates about the place of social class within the broader field of equality and precisely which equality strands should be prioritised, given their growing number. There has also been considerable policy turbulence around the human rights agenda. There is now a recognition that more needs to be done to promote community integration and cohesion, to foster a positive view of human rights and to debate the meaning of multi-culturalism. Following the passage of the Human Rights Act (1998), which incorporated the principles of the European Convention on Human Rights into UK domestic legislation, there has been ongoing discussion about the balance between the rights of the individual and those of the wider community. In July 2006, a report was published entitled Rebalancing the Criminal Justice System in Favour of the Law-Abiding Majority (Home Office, 2006) and in November 2006 a review of the operation of the Human Rights Act was published by the House of Lords and House of Commons Joint Committee on Human Rights (House of Commons, 2006). Fuelled by fears of a possible backlash against the human rights agenda, an important policy decision was made to establish a single commission to deal with equality and human rights, although in Scotland the commitment of the Scottish Government to establish a separate Scottish Commission for Human Rights was honoured. In Autumn 2006, Nick Watson, University of Glasgow, and Sheila Riddell, University of Edinburgh, were awarded a grant by the Scottish Funding Council to undertake a feasibility study with a view to establishing a Scottish Centre for Research on Equality and Human Rights. The study set out to examine both the likely benefits and the possible risks of such a development. It was envisaged at the outset that the proposed centre would provide a focus for Scottish research on equality and human rights, informing the Scottish legislature as well as the public, private and voluntary sectors. In addition, it was hoped that the proposed centre would become a focus for the generation of 1

2 internationally competitive research, establishing and confirming Scotland s position as an international leader in thinking and research on equality and human rights. The feasibility study aimed to investigate: Current debates in equality and human rights and their implications for research; The implications of recent policy and practice developments in the broad field of equality and human rights and their impact on Scotland in the context of devolution; The nature of available quantitative and qualitative data on equality and human rights in Scotland and the future data requirements of a range of stakeholders; The current equality and human rights policy landscape in Scotland, the UK and internationally; Priority areas for research and knowledge transfer activities; Future funding options. It was envisaged from the outset the Centre would be inter-disciplinary in nature, providing the research infrastructure for effective interactions between diverse disciplines including education, law, sociology, politics and business. The feasibility study sought to explore the extent to which the Centre could act as a knowledge hub, conducting and disseminating research which was high quality, strategic and interdisciplinary. Furthermore, the involvement of a wide range of stakeholders across a variety of sectors was seen as critical. Methods employed in the feasibility study In order to investigate the need for a Scottish Centre for Research on Equality and Human Rights, the following methods were employed: Literature and policy reviews identifying key issues and tensions in the field of equality and human rights A review of research and statistics and an analysis of future data needs in the light of the recommendations of the Equalities Review Interviews with key stakeholders in the public, private and voluntary sectors A review of approaches to policy and research on equality and human rights in national and international context Consultation and dissemination events These are discussed further in the sections which follow. In addition, the following working papers can be found on the Centre website ( Paper 1: Equality and Human Rights: Key Concepts and Issues; Working Paper 2: Policy Review: Equality and Human Rights; Working Paper 3: Human Rights: An Annotated Bibliography; Working Paper 4: Digest of Research on Equality; Working Paper 5: Report on Key Informant Interviews; Working Paper 6 Mainstreaming Equality: An International Perspective. 2

3 SECTION 2: KEY ISSUES AND TENSIONS IN THE FIELD OF EQUALITY AND HUMAN RIGHTS Introduction Although often contested and certainly complex to work with, the broad goal of mainstreaming equality has become the established orthodoxy for public policy work on equality and human rights. It involves the integration of equality perspectives into every stage of policy processes design, implementation, monitoring and evaluation with a view to promoting equality. Equalities perspectives generally include the recognition of inequalities, and the on-going promotion of equality, in terms of age, disability, gender, race, sexual orientation and religion. Yet whilst the same broad approach to equalities may apply across the UK, in member states of the EU, and many other countries, the concept of mainstreaming is interpreted and operationalized in diverse ways. These diversities emerge from historical and cultural factors, organisational and legislative arrangements, political will, and available resources. Across the world, inequities are evident, in varied ways, and a number of organizations and researchers have documented these (Firebaugh, 2006). Whilst recognising the vast inequalities that exist across the globe, governmental responses within post-industrial societies have focused on ameliorating a limited range of inequalities such as those relating to gender, race and disability. These areas have been identified as having a particular impact on labour markets, economies and work-life reconciliation 1, and change has been driven by both the quest for social justice and the desire to create level playing fields within competitive markets. Within the European Union, in particular, there is a desire to achieve socially cohesive societies and avoid conflicts within and between member states. At the same time, it is recognised that allowing one country to discriminate against certain social groups might give them an unfair advantage, so anti-discrimination and equality legislation may be seen in the context of the managed market within social democratic states. Discrimination on grounds of sexual orientation, age and religion is also receiving much attention, given the ageing of many populations coupled with increased recognition of differing belief systems and the potential for these to foster political agitation and civil unrest. In Great Britain the Government has established a single equalities body incorporating, in relation to England and Wales, a human rights commission, with a specific equalities commission and separate human rights body in Scotland. Northern Ireland already has a single equalities body and human rights commission which has been in operation from Whilst equality groups welcome some aspects of mainstreaming, questions have been raised about the extent to which a generic approach to equality is capable of reflecting equally the interests of all equality groups. Further, questions have also been raised about the coupling, or separation, of equalities and human rights legislation and organizational responses. Similarly, the extent to which all public policy can (or indeed should) consider the interests of all groups simultaneously has been queried: how might greater equality be achieved given the inter-weaving ways in which inequalities can operate? Mainstreaming equalities is therefore a topic of immediate interest to policy-makers, practitioners, trade unions and professional associations, social movements and individuals. Equality and human rights 1 Post-industrial society is a term used to describe societies that have undergone certain economic and demographic changes. These include a rapid growth in the service sector and decline in manufacturing alongside enhanced dependence upon information technology. Governments now often refer to the knowledge economy and the need for workers with technological and communication skills. Participation of women in the labour market, regardless of their care responsibilities, has become critical to economies and household incomes. Fertility rates have declined, populations are ageing, and thus immigration has become central to maintaining an adequate pool of both skilled and unskilled workers. These issues pose particular challenges for equality and human rights. 3

4 Equality and human rights concerns have become key elements on agendas for many governments, trans-national and non-governmental organisations (NGOs). As concepts they raise aspirations about the attainment of individual potential free from discrimination and prejudice. They also aim to foster respect and understanding between people and communities. Issues such as migration and immigration, limited educational attainment among specific groups and communities, the continued under-utilization of the skills of women, raise concerns. Increasingly, governments and NGOs assert that addressing these, and related issues, will aid social justice and economic prosperity. The principles of human rights, enshrined in the European Convention on Human Rights, provide a guarantee for the same protection and treatment regardless of who you are or how you choose to live. The convention has had a major impact in member states, as well as those countries seeking accession to the EU. Democracy and legitimacy, it is asserted, cannot be fully realised unless there are opportunities for all to participate equally. The duty to enact the letter and spirit of the convention is with governments and most have aligned responses to this with the requirements of the range of EU directives on equal treatment and discrimination (Rees, 1998; Fredman, 2000). Further, in the UK devolution has provided a new political and administrative settlement for Wales and Scotland. Over the last decade new contexts and ways of working have been created through the Scotland Act 1998 and the Government of Wales Act The political complexities of Northern Ireland have lead to a different settlement there too. These developments recognise the differing social, economic and political environments contained within the UK. Yet all of these developments are underpinned by provisions for the promotion of equality of opportunity for the UK as a whole, although, in turn, devolved government has an impact upon this too. The role of business is coming under increasing scrutiny both as a factor in the creation of inequalities but also as a champion of new ways of working to promote equality and human rights. Certainly the response of business to legislation and the work of relevant governmental agencies is to the fore of government s thinking in any proposals for action. In the competitive environment of the knowledge, or skills based, economies, organisations and businesses may aim to become what is commonly termed as an employer of choice 2. In this context equalities and human rights are drawn upon as positive elements of employment policies and practices. Mainstreaming: Opportunities and tensions As noted above, added to this increasingly complex arena of economic and political developments on equalities and human rights is the concept of mainstreaming. As noted earlier, this concept has achieved the status of orthodoxy in so far as it has become the accepted basis to governmental practices and policies in most post-industrial societies. Mainstreaming equality implies that equal opportunities principles, strategies and practices should be integrated into all aspects of the work of government and public bodies. The United Nations, the Commonwealth governments, the Council of Europe and many governments worldwide support this basis to strategic action. Mainstreaming has implications for participative democracy, since it implies that wide consultation of individuals and groups should take place before legislation is passed to ensure that it is equality proofed (Rees, 1998; Breitenbach et al., 2002). Devolved governments in the UK and within Europe have been particularly strong in adopting and promoting mainstreaming (Rees, 2001). Following the European Employment Directive, which outlaws discrimination in relation to gender, race, disability, sexual orientation, age and religion, the UK government announced its intention to move towards a mainstreaming approach, replacing the existing equality commissions with a new single equalities body. The justification for this move is that, firstly, individual identity is complex, not unitary. 2 Employer of choice is a term used by companies to assert that there are policies and practices in place that recognise employees as the greatest asset of the business. Policies and practices incorporated in this approach tend to focus upon work-life reconciliation and professional and personal development (See 4

5 Therefore, if an individual has experienced discrimination in relation to employment or some other aspect of their life, it may be difficult to know whether the unequal treatment has arisen as a result of their gender, disability, race etc. Further, the principles that underpin equality in relation to all aspects of identity are fundamentally the same. Although governments and some political groups are in favour of mainstreaming, a number of questions have been raised about its practicality and legitimacy. At a fundamental level there is a lack of clarity about the concept of mainstreaming and what it might entail, with some proponents defining it as a strategy whereby a concern with equality and identity permeates all aspect of policy-making and legislation, whilst others see it primarily in terms of the universal principles which should be applied to all aspects of equality policy (Breitenbach et al., 2002). A generic approach to equality may be theoretically flawed, since it is not clear that all equality groups face similar social, political and economic barriers. For example, the obstacles to full political participation encountered by women, black and disabled people may be quite different (Riddell and Watson, 2003). Drivers of inequality: the politics of identity versus the politics of redistribution Even within particular equality fields (for example, gender, disability, race), there are ongoing debates as to whether discrimination and inequality occur as a result of economic injustice (Fraser, 2001) or lack of political recognition (Young, 2000). Mainstreaming equality policies may gloss over these very important debates both within and between a range of equality domains. A generic approach to a range of equality issues may reduce the political power of new social movements such as the disability movement, which has developed relatively recently and is still in the process of carving out its political terrain (Riddell and Watson, 2003). People are much less likely to mobilise round generic equalities than a specific aspect of identity such as gender, sexual orientation or disability. The single equalities body which is the future vehicle for the delivery of the mainstreaming agenda takes no account of social class, which in many fields such as education, health and employment is the social variable most strongly associated with unequal outcomes and life chances (Saunders, 1989; Firebaugh, 2006). There are concerns that the focus may be on ensuring that public bodies comply with statutory requirements, instead of addressing material outcomes. The goals of equality policies: equality of opportunity, process or outcome? There continue to be tensions and debates about the ultimate goal of equality policy and practice. Liberal approaches to equal opportunities suggest that barriers inhibiting the social progress of particular groups should be removed, so that everyone begins life on a level playing field. However, social theorists such as Bourdieu and Passeron (1977) have argued that a certain way of reproducing social inequality is to place all individuals in a similar position when, for example, starting school or accessing a health service. Given that some people by accident of birth have access to a wide range of economic, social and cultural capital (Bourdieu, 1997), which others, through no fault of their own, lack, a level playing field will inevitably reinforce existing social inequalities. A more radical approach to equality policy and practice focuses on achieving equality of outcomes between different groups. Proponents of such an approach maintain that if social inequalities are to be challenged rather than reproduced, some groups and individuals must be positively assisted at key points in their lives. The idea of reasonable adjustments for disabled people, enshrined in GB disability discrimination legislation, goes some way to reflect this principle, although positive action is generally not permitted within GB equality legislation. In the US where forms of positive action for black people were pioneered in certain arenas such as access to higher education, there was some evidence of success in improving access to high status institutions, but also something of a backlash amongst groups and individuals who felt that they had not been similarly supported. Whilst positive action has fallen out of favour particularly in the US, strong arguments are still made by political 5

6 philosophers such as Anne Phillips (2004) in favour of equality outcome. She maintains that if particular groups are found to under-achieve in particular social fields such as education, income or life expectancy, then we should make the assumption that they are encountering particular barriers or disadvantages, which should be identified and removed. There has also been considerable interest in analysing the procedural justice within social welfare systems, identifying the dominant discourses which underpin and legitimise particular practices. Mashaw (1983), for example, analysed the discourses in play within US social security systems, identifying ongoing tensions between systems which upheld the interests of professionals, administrators or individual service users. Riddell (2006) applied these ideas to the field of special educational needs, suggesting that professionals tended to dominate the field and promote discourses based on identifying children s needs which in reality tended to uphold their interests rather than those of disabled children and their parents. As the modernisation of social welfare systems continues, with ongoing emphasis on individualisation, it is inevitable that the focus on equality of process will continue. The Equalities Review (Cabinet Office, 2007) recognised these different approaches to equality and the possibility of becoming mired in well-entrenched debates between proponents of different positions. Drawing on the work of the economist and philosopher Amartya Sen (see, for example, Sen, 1992), the following definition of an equal society was proposed: An equal society protects and promotes equal, real freedom and substantive opportunity to live in the ways people value and would choose, so that everyone can flourish. An equal society recognises people s different needs, situations and goals and removes the barriers that limit what people can do and can be. (Cabinet Office, 2007: 16) This definition combines aspects of approaches based on equality of opportunity, process and outcome. However, it also emphasises different needs, situations and goals, implying that people may choose to prioritise and value different social outcomes. Tensions between universalism and the recognition of difference lie at the heart of different understandings of equality (for a discussion of the principles of universalism see Phillips, 1992). However, as noted by Fraser, 2001, there are inherent dangers in assuming that people have actively chosen unequal social outcomes in order to reinforce a particular aspect of their identity. Another reading of their situation would suggest that they may be victims of social forces and pressures which lie outwith their understanding and control. For example, boys from socially disadvantaged backgrounds in Scotland may actively reject academic achievement because this accords with their performance of masculinity, without recognising that this rejection of schooling may well reinforce their long-term social disadvantage. A criticism of the capabilities approach to equality, which now lies at the heart of GB government equality policy, is that it may over-emphasise individual agency and the desire for cultural identity and difference, and may underemphasise the immense power of structural forces which reproduce a range of social inequalities. Conclusion In summary, there are a number of questions in relation to the equality and human rights agenda which are likely to continue to be debated over coming years. These may be summarised thus: Conceptual issues relating to equality and human rights Whilst a new definition of what counts as an equal society has been proposed, discussion and disagreement are likely to be on-going, particularly as the devolved administrations develop their own agendas which may not be entirely consistent with Sen s capabilities approach. At the heart of many conceptual discussions are tensions between the politics of redistribution and the politics of identity, and the inter-connected discussion about difference versus universalism. Furthermore, the integration 6

7 of equality and human rights within one commission at GB level will continue to be debated. Whilst the intention behind this is to widen people s understanding of the concept of human rights by linking it to concepts of basic human freedoms, it may not be straightforward in practice to reconcile the equality and human rights agendas. Deciding which equality strands should be recognised At GB level, six equality strands are recognised in line with European policy, legislation and regulation. However, in the devolved administrations a slightly different list of strands is recognised, for example, in Scotland social background is included and in Wales, Welsh language has a particular status. Dealing with varying accountability regimes within different jurisdictions may pose complications in the future. At a more fundamental level, the use of pre-specified categories is dismissed by some who maintain that the emphasis should be on the way in which individuals construct and negotiate identity over the lifecourse. For example, writers like Corker and Shakespeare (2002) have described disability as the ultimate post-modern category because the extent to which an individual perceives themselves as disabled is likely to vary over time and in relation to an individual s social location. A generic approach to equality It is not evident that generic equality legislation and policy will be feasible or effective, as evidenced by the critical response from bodies like the Disability Rights Commission to aspects of the proposal for a single Equality Act in the Discrimination Law Review (Department of Communities and Local Government, 2007). It is evident that the barriers facing different equality groups are fundamentally different, and it will be important to ensure that different approaches to securing equality are maintained, for example, the reasonable adjustment provisions which relate to disabled people and which do not apply to other groups. Assessing the impact of equality policies There are also ongoing debates on how the impact of equalities policies should be assessed. A key process in mainstreaming, social audit 3, is often criticised as overly managerialist, and there are disagreements about what categories and performance indicators should be used within any audit (Riddell et al, 2007). Equality schemes, currently produced in relation to race, gender and disability, are to date the main accountability technique employed in the field of equality. However debates continue in relation to their utility in relation to the time taken to produce them, and the extent to which single equality schemes, the logical product of mainstreaming equality, would reduce the focus on particular strands such as race and disability and undermine some of the gains which have been made. The proposed Scottish Centre for Research on Equality and Human Rights would hope to contribute to these discussions in the future so that clear understandings of a distinctively Scottish perspective on these issues can be developed, and can be placed in a wider UK and international context. 3 Social auditing is a way of measuring the extent to which organizations are working towards values and objectives it has committed itself to. With regards to mainstreaming this involves the determination of categories for data collection to enable on-going monitoring and evaluation in the pursuit of equalities. It may also include the collection and analysis of qualitative material for the identification and assessment of processes. 7

8 SECTION 3: POLICY REVIEW Introduction Both through domestic and foreign judiciaries, the UK is bound by a range of international and national human rights instruments. These instruments include various UN Conventions, the EU Charter of Fundamental Rights, as well as the European Convention on Human Rights which was given further force in the UK context by the UK Human Rights Act In addition, a series of domestic laws have been passed and amended since the 1970s to ensure equality and protection from discrimination in relation to specific sections of society. This review examines the origins, underlying principles and implications of the most significant of these instruments. The Council of Europe The Council of Europe was the body responsible for developing the European Convention on Human Rights and the European Court of Human Rights (ECHR), which have exercised an important influence on the legislature of member countries. Indeed, before the UK passed its own Human Rights Act in 1998, all UK human rights cases were examined at this European level. The Convention was the basis of two important directives issued by the European Union in 2000: the Racial Equality Directive and the Employment Equality Directive. The directives were also made possible by Article 13 of the Treaty of Amsterdam, which gave the EU powers to insist that member states produce anti-discrimination legislation. These directives required that the 25 EU member states ensure their equality legislation was updated to incorporate the following specific grounds of discrimination: race and ethnic origin, religion and belief, age, disability and sexual orientation (in addition to this the Equality and Human Rights Act 2006 lists gender). Europe s oldest political organisation, the Council of Europe was founded in 1949, following the Treaty of London. It comprises 47 member countries, 1 applicant country (Belarus) and five countries with observer status : the Holy See, the U.S., Canada, Japan and Mexico. Following the ravages of two world wars, the Council was created as a mechanism for defending human rights, democracy and the rule of law across Europe. Beyond this, it also aims to foster a common European identity as well as democratic stability in Europe by backing political, legislative and constitutional reform. The UK was among the ten original signatories to the Council in 1949, followed by Greece and Turkey later in the same year. The European Convention on Human Rights Origins of the Treaty To use its full title, the Convention for the Protection of Human Rights and Fundamental Freedoms is the treaty by which the member states of the Council of Europe undertake to respect fundamental freedoms and rights. It was strongly influenced by the aspirational principles underlying the Universal Declaration of Human Rights, published by the General Assembly of the United Nations in December The Convention was signed by the 12 Council members in 1950, and came into force in The UK was among the first signatories to the Convention, which had been drafted substantially by Sir David Maxwell-Fyfe. It was the first international legal instrument that sought to safeguard the rights and freedoms of its people, and has in turn influenced other nations approaches to human rights, notably the U.S. Two independent bodies were commissioned to oversee the enforcement of the Convention: the European Commission of Human Rights (1954) and the European Court of Human Rights (1959). 8

9 This two-tier system was replaced in 1998 by the new European Court of Human Rights, as agreed at the Vienna Summit of In 1999, the first Commissioner for Human Rights was appointed, charged with responsibility for promoting awareness of the Convention and its key messages. Composition of the Treaty The Treaty is divided into three main sections, each comprising a number of Articles. Section 1 Rights and Freedoms contains 17 Articles, each one pertaining to a distinct civil or political right. It is this section that specifies the core human rights that are commonly referred to as the Convention. Section 2 contains a further 33 Articles pertaining to the creation of a European Court of Human Rights, while Section 3 contains 8 Articles listing Miscellaneous Provisions. A number of additions have been made since the drafting of the original Convention in These take the form of a series of Protocols, containing further Articles specifying additional rights and how they should be protected. The whole Treaty is prefaced by Article 1 that frames the Convention by charging High Contracting Parties (i.e. signatory countries) with the Obligation to Respect Human Rights for all those within their jurisdiction. The rights guaranteed absolute, limited and qualified rights Not all the Convention rights are formulated in the same way. They can be divided into three main types: absolute, limited and qualified. As the name suggests, the first type are inalienable and unbreachable. They include the right to life (Article 2), to protection from torture or inhuman and degrading treatment (Article 3), and from slavery (Article 4), as well as protection against retrospective criminal penalties (Article 7). Limited rights like the right to liberty (Article 5) are subject to explicit and finite limitations based on exceptional circumstances. The exceptions are set out in the ECHR. Finally, among the qualified rights are the right to respect for: private and family life (Article 8), religion and belief (Article 9), freedom of expression (Article 10), and assembly and association (Article 11). Interference with such rights is only permissible if it is: a) based in law, b) done to secure a permissible aim as specified in the Convention (for example protecting the public order), or c) a proportionate and democratic action which is necessary to fulfil a social need or pursue a legitimate aim. The Rights and Freedoms set out in the Convention comprise a set of prohibitions and permissions in a range of areas. These are: Article 2 Right to life Article 3 Prohibition of torture Article 4 Prohibition of slavery and forced labour Article 5 Right to liberty and security Article 6 Right to a fair trial Article 7 No punishment without law Article 8 Right to respect for private and family life Article 9 Freedom of thought, conscience and religion Article 10 Freedom of expression Article 11 Freedom of assembly Article 12 Right to marry Article 13 Right to an effective remedy* Article 14 Prohibition of discrimination Article 15 Derogation in time of emergency* Article 16 Restrictions on political activity of aliens* 9

10 Article 17 Prohibition of abuse of rights Article 18 Limitation on use of restrictions on rights* *Explanatory notes: Article 13: states that anyone whose Convention rights are violated shall have the right to an effective remedy before a national authority, even when the violation was committed by a person acting in an official capacity. Article 15: makes it possible for a signatory country to suspend its obligations under the Convention during a time of war or other public (and life-threatening) emergency. Such suspension will be strictly limited to the exigencies of the situation and provided that it does not contravene other obligations under international law. Moreover, the suspension does not apply to Articles 2, 3, 4, and 7. The Council of Europe must be consulted fully where a state chooses to make use of this right of derogation. Article 16: states that articles 10, 11 and 14 should not prevent signatory states from imposing restrictions on the political activity of aliens. Article 18: limits the restrictions it is possible to place on rights and freedoms to those circumstances stipulated in the Convention. The Protocols There are six Protocols (numbered 1, 4, 6, 7, 12, and 13), which have been added to the Convention at different times since its inception in The first Protocol, issued in Paris in 1952, stipulates further rights to own private property, receive education, and participate in free elections. The remaining Protocols outline prohibitions and protections in relation to freedom of movement, discrimination, the expulsion of nationals and of aliens, and rights relating to criminal procedures (including the right to appeal, compensation for wrongful conviction, and double jeopardy ). The most recent Protocol, signed in Vilnius in 2002 extends the Convention s abolition of the death penalty to apply in all circumstances, including wartime. Application in UK law Although the UK was one of the first signatories to the Convention, it has not signed up to all parts of the treaty. All but two of the Articles listed in Section 1 of the Convention are included in the UK Human Rights Act (and are thus enforceable by the national judiciary). The exceptions are Articles 13 and 15, covering violations of rights by persons acting in an official capacity, and the derogation of states obligations under the Convention during a time of emergency. The UK has also signed up to the First Protocol covering private property, education and free elections, and the Thirteenth Protocol (superseding the sixth Protocol) abolishing the death penalty. The European Court of Human Rights (ECHR) Based in Strasbourg, this is the only truly judicial organ established by the European Convention on Human Rights. The court is designed to ensure that contracting states observe their obligations under the Convention and is comprised of one judge for each member state. From 1965 individual British citizens were granted rights of access to the ECHR where they felt their Convention rights had been breached. However, both the time and expense involved in this process meant that only the most serious cases could be heard in Strasbourg. Upon election in 1997, the British government therefore published the White Paper Bringing Rights Home, leading to the 1998 Human Rights Act. This Act places the European Convention of Human Rights in the context of a homeland judiciary, effectively making the Convention enforceable in British courts. The Human 10

11 Rights Act came into force in the UK in Details of the Act, its relationship with the European Convention on Human Rights, and some of its implications for a now devolved British legislature are examined in the next section. The Human Rights Act 1998 Introduced in 1998, the UK Human Rights Act (HRA) developed out of the European Convention on Human Rights. Although a piece of UK legislation, its purpose is essentially to protect and strengthen equality instruments developed in Europe. In its own terms, it is: An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes. (Human Rights Act, 1998, Chp 42) There are two main ways in which the HRA achieves its stated goals: It places a requirement on UK courts that as far as possible they should interpret the law in a way that is compatible with Convention rights. It places an obligation on public authorities to act compatibly with Convention rights. This latter principle applies also to other organisations in circumstances where they are acting for or on behalf of public authorities. For example, where a private security firm is contracted by the Prison Service it effectively becomes a public authority while carrying out the contracted services. The HRA also gives people the right to take court proceedings if they think that their Convention rights have been breached or are going to be. The HRA will exert an important influence on the operations of the UK legislature, and is likely to shape the development of future laws in certain areas. For example, Article 14 is particularly pertinent to the 2006 Equality Act. This article prohibits discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The Rights it Guarantees The HRA incorporates the rights in Articles 2 to 12 and in Article 14 of the Convention, plus those in the First and Sixth Protocols (detailed above). The incorporated rights are set out in the First Schedule to the HRA and are referred to as Convention Rights. The Sixth Protocol abolishes the death penalty in the UK, which still existed for some extreme cases of treason. However it is written into the HRA that exceptions, for example during wartime, do exist. While the purpose of the Human Rights Act is to give the Convention rights greater force in a national context, not all the rights are incorporated into British law with the Act. Impact of the Human Rights Act The DCA Review of the HRA (DCA, 2006) concludes that it has had a significant and largely positive impact on UK policy-making processes. There are three main ways in which this impact has been felt: by introducing a formal process of human rights proofing for all Bills, ensuring their compatibility with Convention rights through litigation which may force a change of policy or of policy delivery through a change of behaviour in public authorities now required to act in ways compatible with the Convention rights 11

12 In general terms, the Review thus considers that the HRA has in fact strengthened the relationship between the citizen and state by imposing a human rights framework on policy-making, thereby ensuring a means of protecting the needs of an increasingly diverse population. The Act has changed how policy and other decision makers view the Convention rights, because they are now enforceable in UK law. As a consequence, they are explicitly recognised as part of the decision-making process. One result is that this has led to a shift in emphasis in policy away from an inflexible one size fits all model, in favour of one that takes into account individual needs and circumstances. On the other hand, the review cites a number of cases that illustrate the potential increase in inefficiency, controversy or misunderstandings in the system that can arise from the shift towards a culture of entitlements that the HRA signals. Constitutional Implications While it brings human rights into a closer relationship with the British legal system, the Human Rights Act has little impact on the constitutional balance between the Judiciary, the Executive and the Parliament. Unlike a separate British Bill of Rights (a proposed alternative to the HRA), the HRA protects the sovereignty of the UK Parliament. This means that the elected House of Commons, rather than the judiciary, remains the final arbiter on questions of rights and morality even where its decisions (Acts of Parliament) are incompatible with the European Convention. Moreover, the DCA Review concludes that the Human Rights Act has had the positive effect of establishing a closer dialogue between ECHR judges and the British judiciary. Implications of Devolution The devolved governance structure in the UK, combined with a distinctive judicial system in Scotland, means that the impact of the HRA will vary to some degree in each of the countries. This differential impact should be particularly noticeable given that the HRA did not come into force until two years after the devolved legislature was established with the Scotland Act (1998). Nevertheless the HRA provides the constitutional framework within which devolution was effected and sets out the Convention rights that are embedded in the Scotland Act, the Government of Wales Act, and the Belfast Agreement and Northern Ireland Act. Under the initial devolution arrangements the National Assembly of Wales did not have primary legislative powers, although human rights were written into the Government of Wales Act The Assembly was thus required to Act in ways that are compatible with the European Convention on Human Rights. The Government of Wales Act 2006, which reiterated existing commitments on Human Rights, introduced fundamental reforms to the Welsh Assembly. With effect from May 2007 the Act introduced a separate executive body with legal separation from and accountability to the legislature. Thus a new governance structure for Wales was introduced, comprising the Welsh Assembly Government (the legislature) and the National Assembly for Wales (the executive). The relationship between them mirrors that of the UK government and Parliament respectively. Following these changes the Welsh Assembly Government is awarded new powers to legislate on devolved matters such as education, health, and public services. These powers are, however, subject to the Assembly being granted legislative competence on a particular devolved issue. This is granted on a case-by-case basis by the UK Parliament. In exercising this legislative competence on any issue the Assembly is required to act compatibly with the Convention Rights. Given these new legislative powers over devolved issues, the Assembly must inevitably give fuller consideration than hitherto to the place of human rights in Welsh public and political life. The Northern Ireland Act 1998 contained a commitment to safeguarding human rights and equality of opportunity. Specifically, a devolved administration is prohibited from acting in a way that 12

13 contravenes the Convention rights. In addition, in compliance with a commitment made by the UK government at the Belfast (Good Friday) Agreement in 1998, Section 68 of the Act made provision for a Northern Ireland Human Rights Commission. This is an independent public agency neither an NGO nor a governmental body and is recognised by the UN as a member of the worldwide network of National Human Rights Institutions. Its role is to promote awareness of the importance of human rights and to advise both the UK Secretary of State and the Executive of the Northern Ireland Assembly. The Commission has the power to conduct investigations, to assist individuals wishing to take cases to court, and to bring court proceedings itself. In addition to its educational and advisory roles, the Commission is specifically charged with compiling a Bill of Rights for Northern Ireland to supplement the European Convention on Human Rights. Through its Bill of Rights Forum (established in December 2006) it is currently engaged in public consultation on this issue. According to the provisions of the Scotland Act 1998 the Scottish Parliament must legislate in ways that are compatible with the Convention rights. Importantly, this means that the courts can invalidate Acts of Scottish Parliament where they are incompatible with the Convention rights. By contrast, courts can only make Declarations of Incompatibility in relation to Acts of UK Parliament. The Scotland Act prohibits all members of the Scottish Executive from making subordinate legislation or from committing any other act that is incompatible with the Convention rights. For example, any proposed actions that are incompatible witht the UK s international obligations can be prevented by the Secretary of State. In short, while human rights are a reserved matter the activities of the Executive in devolved matters must also be governed by human rights considerations. Since the Scotland Act took effect in May 1999 the Scottish courts have thus examined human rights cases taken against the Executive. Following the UK Human Rights Act, which came into effect in 2000, the most important change for the Scottish judiciary will be the range of individuals and bodies required to abide by and implement human rights. In effect, the Scottish Government and the Scottish Parliament are no longer the only public authorities bound by the Convention rights. The idea of a public authority is central to the Human Rights Act, and the legally enforceable protections it brings to UK citizens. It will also be a key issue in implementing and enforcing human rights in the context of the UK s devolved governance structure. One of the most pressing concerns for policy-makers is how this term is defined. In the Human Rights Act the term is in fact only partially defined as including (but not limited to) a court or tribunal and any person certain of whose functions are of a public nature. The Act is deliberately open-ended in this respect, and it will be left to the courts to determine who or what is a public authority and therefore has obligations in relation to human rights. An example that attracted a considerable amount of debate in this regard was the Church of Scotland (and other churches). In so far as it provides formal (primary or secondary) education and performs other public functions it must be regarded for the purposes of the HRA as a public authority. It is possible to distinguish two broad categories of public authority. Included among the pure public authorities would be all branches of central and local government, the military, customs and police, and the public prosecution service. On the other hand there are hybrid public authorities which perform some public function(s) but may be in no sense agencies of government at any level. There is an important difference between these two types of public authority when it comes to the Human Rights Act. All the activities of a pure public authority (for example the Scottish Executive) must be compatible with the Convention rights. However, hybrid public authorities need only observe the Convention rights when carrying out their public functions. Importantly, this latter type of authority is thus not bound by the Convention rights in regard to its internal organisation. Where private organisations are contracted to carry out public functions they will have to demonstrate their awareness of public authority obligations in respect of human rights. A further important implication arising from how public authority is defined in the HRA relates to the law courts. As public authorities the courts will inevitably be constrained by their own Convention 13

14 obligations when considering private law disputes. For example granting an interdiction to exclude someone from a shared home in cases of domestic dispute may be deemed a breach of that party s Convention rights (Gane, 2000). Equality Strands in GB Legislation GB has a number of pieces of legislation designed to promote equality and combat specific forms of discrimination. Most notably these instruments address (in)equality issues in relation to gender, race and disability. Much of the legislation offers protections against discrimination in the workplace and other areas of public life. Since the 1970s the most significant pieces of anti-discrimination legislation have been the Equal Pay Act (1970), the Sex Discrimination Act (1975), the Race Relations Act (1976) and the Disability Discrimination Act (1995). The following sections discuss some of the key protections they offer, and the Commissions created to support and promote them. The discussion includes additional protections secured through Amendments or subsequent legislation in other areas (for example laws relating to issues like sexual orientation or religion and belief). The Equal Pay Act 1970, the Sex Discrimination Act 1975 and the Equal Opportunities Commission The Equal Pay Act 1970 (EPA) and the Sex Discrimination Act 1975 (SDA) both protect the right to equality on grounds of sex. Each has been amended a number of times since they both came into force in A separate Sex Discrimination (Northern Ireland) Order was passed in The EPA guarantees adult men and women equal rights in pay and benefits where they are doing work that is demonstrably the same or equivalent in either content or value. The SDA prohibits discrimination in employment, education, advertising, housing or the provision of goods, services or facilities. It applies to men and women of any age, including children. The SDA applies to England, Wales and Scotland, with dedicated branches of the Equal Opportunities Commission operating in each country. The purpose of the SDA is to make unlawful sex-based discrimination in specific areas of public life. Victims of such discrimination may take legal action against the perpetrator. The Act also prohibits victimisation of those who try to exercise their rights under the SDA or Equal Pay Act. In addition to protecting individuals from discrimination on grounds of sex, the SDA also prohibits discrimination against married people and, following the Civil Partnership Act 2004 (effective from December 2005), those in a civil partnership. It does not, however, make it unlawful to discriminate against someone because they are single. While discriminatory advertisements are unlawful, only the Equal Opportunities Commission has the power to take legal action against advertisers. Forms of Sex Discrimination The SDA prohibits both direct and indirect sex discrimination. Part 1 of the SDA outlines the various forms of discrimination to which it applies. It includes specific provisions for discrimination on grounds of gender reassignment, pregnancy and maternity and harassment in employment. Direct sex discrimination involves treating a man or woman less favourably because of their sex than a person of the opposite sex would have been in comparable circumstances. The Act also deals with the more complex question of indirect discrimination. This involves the application to both sexes of some requirement, condition or procedure that particularly disadvantages one sex and is not justifiable on objective grounds unrelated to sex. This provision applies in all the fields covered by the SDA. The Sex Discrimination (Gender Reassignment) Regulations 1999 amended the SDA to extend its protections in employment (pay and conditions) and vocational training to include discrimination on grounds of gender reassignment. Harassment on these grounds is also expressly prohibited by the SDA. Disadvantageous treatment of an employee arising from of her pregnancy and/or maternity leave is prohibited by the SDA. In such cases the woman need only prove that she is treated less favourably than other women who are not pregnant or who do not have children, rather than via comparison with male employees. The courts have found that the SDA does not cover discrimination 14